Ramirez-Garcia v. Scutt

Filing 27

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus - Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCOS RAMIREZ-GARCIA,
Petitioner,

Case No. 08-12051
Honorable David M. Lawson

v.
DEBRA SCUTT,
Respondent.
_______________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Marcos Ramirez-Garcia, presently confined at the Macomb Correctional Facility
in New Haven, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. The petitioner was convicted of second-degree murder, Mich. Comp. Laws §
750.317, and possession of a firearm during the commission of a felony (felony firearm), Mich.
Comp. Laws § 750.227b, in the Wayne County, Michigan circuit court and sentenced to prison terms
of 20 to 40 years for second-degree murder and a consecutive two-year term for the felony firearm
charge. The petitioner alleges that his custody is unconstitutional because he did not have effective
trial counsel, his conviction was not supported by sufficient evidence, and the prosecutor committed
misconduct. The respondent has filed an answer to the petition asserting that the petitioner’s claims
lack merit because the decision of the Michigan Court of Appeals rejecting those claims did not
result in an unreasonable application of clearly established Supreme Court law. The Court agrees.
Therefore, the petition will be denied.

I.
This case arises from the shooting death of Fabian Ponce-Mejia in the early morning hours
of March 28, 2004. The victim, 23 years old, was with a friend, Fernando Sanchez, at the Los
Galanes restaurant and bar in southwest Detroit until about 1:40 a.m. The men left Los Galanes and
went to another nearby bar, El Comal, where they stayed for about 15 minutes. Upon leaving, the
victim began walking with Sanchez and a third, unidentified friend to Sanchez’s van. As the men
crossed Vernor, they were passed by a black Dodge Stratus containing three men. The men in the
car shouted things at the victim and his companions in Spanish. The victim shouted back at the men,
and Sanchez told the victim to be quiet.
Sanchez, the victim, and the victim’s friend walked down an alley toward Sanchez’s van.
The men then separated. Sanchez continued toward the van while the victim and his friend turned
and walked back up the alley. Minutes later, Sanchez heard three or four shots from what he
believed was one gun. Sanchez got into his van and drove around the block. From his van, Sanchez
saw the victim lying on the ground in the alley. He recognized the victim because of his red shoes.
Sanchez parked the van and returned to the location where the victim was lying. By the time he got
there, the police had arrived.
Gerardo Zuniga also heard the gunshots that night. Zuniga had been at Los Galanes earlier
that night and left Los Galanes approximately ten minutes after the victim departed. Zuniga was
sitting in his truck near the restaurant when he heard three or four gunshots. He saw a 1993 or 1994
model black car containing three Mexican men turn left from an alley and speed down 24th Street.
Zuniga drove his truck to the alley and saw the victim on the ground. Zuniga flagged down a police
officer and led him to the victim’s body.

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The medical examiner testified that the victim died of gunshot wounds to his right chest,
right leg, right back, and left back. Four spent 9 mm. bullets were recovered from the victim’s body.
Three were 9 mm. hollow point bullets that had been fired from the same gun. The fourth bullet was
not a hollow point bullet and had been fired from a different gun. A spent 9 mm. casing was found
in the alley near the body.
A search warrant was executed at 8390 Longworth Street in Detroit. Officer Rudy Zuniga
testified that he saw the petitioner, Marcos Ramirez-Garcia, standing outside the house. As Officer
Zuniga approached and yelled “police,” the petitioner ran inside the house. Officer Zuniga ordered
the petitioner to come outside; the petitioner complied and was arrested outside the residence. Inside
the house, the police found a bulletproof vest bearing graffiti possibly associated with the Surenos
and Muertos 13 gangs, a holster, and two photographs depicting people making gang signs with their
hands. The police also recovered two .38 caliber handguns and twenty rounds of .38 caliber
ammunition. The firearms examiner tested the handguns and found that neither of them had fired
the 9 mm. bullets recovered from the victim’s body.
At trial, the prosecution offered testimony by a police officer that the Surenos, the Muertos
13, and the Latin Counts were gangs in southwest Detroit. The Muertos 13 and the Latin Counts
united at some point to “take down” the Surenos, but later the Surenos became part of the Muertos
13. The colors of Latin Counts were red and black, the colors of the Surenos were blue and black,
and the colors of the Muertos 13 were gray and black.
The petitioner was interviewed in Spanish by Officer Moises Jimenez on September 17,
2004, following his arrest. The petitioner told Officer Jimenez that he lived at 8390 Longworth
Street. Jimenez used a waiver of rights form written in Spanish to advise the petitioner of his

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Miranda rights. The petitioner signed the form and orally waived his rights. Jimenez reduced the
interview to a statement written in Spanish that the petitioner signed.
In the written statement, the petitioner asserted the following. The petitioner went to the
International Club with “Chino” in Chino’s black Dodge on March 28, 2004. “Chino” was
identified as co-defendant Miquel Perez-Hernandez. They got into a fight with some Counts at the
club. The petitioner and Chino then left the club with David Tapia and went “cruising through
Vernor.” As they passed El Comal they saw a guy coming out of the alley. Chino said “very much
Count, whore,” and then fired three or four shots. Trial Tr., Feb. 9, 2005, at 161. The petitioner “got
down.” Ibid. When asked if he had fired his gun, the petitioner said that he had a .25 revolver and
that he “only fired toward the sky” and “upwards” when the “guy was on the ground” because he
did not want his companions to say that he was afraid. Id. at 162. The three men then quickly fled
to the freeway. The petitioner said that he did not know the victim and that the victim “wasn’t even
in red.” Ibid. The petitioner said that he did not want to kill the victim and did not know that Chino
was going to shoot someone.
Prior to trial, the petitioner moved to exclude his statement on the ground that it was given
in violation of his Miranda rights. The trial court held an evidentiary hearing. At the hearing,
Officer Jimenez testified that he had read the petitioner his Miranda rights in Spanish, that the
petitioner waived those rights both orally and in writing, and that the petitioner never asked to speak
to an attorney.
The petitioner testified at the hearing through an interpreter that he had completed middle
school and could read and write the Spanish language “more or less.” Mot. Hr’g Tr., Dec. 16, 2004,
at 25. The petitioner denied having been read his rights by Officer Jimenez. The petitioner

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acknowledged that his signature appeared at the bottom of the Spanish-language waiver of rights
form, but he testified that he had not read the form and only signed it because Officer Jimenez told
him that he could go home if he did so. The petitioner also testified that Officer Jimenez threatened
to have him beaten if he did not sign the papers. Following the hearing, the court found that the
prosecution had established by a preponderance of the evidence that the statement was given
voluntarily and knowingly following administration of Miranda rights.
The petitioner was tried jointly with codefendant Miquel Perez-Hernandes before separate
juries on charges of murder and felony firearm. At trial, the state introduced evidence of phone calls
made by the petitioner from jail. The recordings were played at trial with an interpreter translating
the petitioner’s words for the jury. In this translation, the petitioner is said to have stated that “the
pistol that I had they don’t even have in evidence,” and “[b]ut about the guy that died, the pistol
doesn’t have anything to do with it.” Trial Tr., Feb. 9, 2005, at 168. The petitioner said that the
police threatened him. He stated “[i]f anything else, they are going to charge me with having a gun.”
Id. at 171. He said that his comrade “said things that weren’t true but no matter what I never said
that I killed him.” Id. at 173. The petitioner also stated that “I never accepted that I killed him.”
Ibid. He said that “[m]y comrade accepted that he had done it,” and “if we cannot change the
papers, he is gonna blame — he is gonna take the blame. Then he’s going to take the blame. He’s
going to say that he and another guy did it.” Id. at 173, 175-76. The petitioner stated that “they told
me the guy doesn’t have .22 caliber bullets,” and “from my comrade they got another gun. And they
didn’t find anything on me I think.” Id. at 177.
A second translation of the recorded telephone conversations was prepared by the interpreter
after she took the recording home overnight. This translation was admitted on the stipulation of the

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parties. According to this translation, the petitioner said that he did not “confess that I killed him.”
Trial Tr., Feb. 10, 2005, at 65. “I am only saying that I had a gun, but the gun I was carrying it’s
no longer there. There is no evidence. The guy that died does not have bullets from my gun.” Id.
at 64. The petitioner said that he believed would get probation or be incarcerated for about 16
months or be deported to Mexico. The petitioner said that he signed the “papers” because the police
officer threatened him. Id. at 70-71. The petitioner said that “they are going to try to change what
I said . . . but if it’s not possible, then I will be charged for having a gun or carrying a .22.” Id. at
65. The petitioner stated, “I didn’t confess that I killed him. It’s the truth on my mother. I was only
there.” Ibid. The petitioner said that his “comrade” “accepted everything,” and “if the papers
cannot be changed, he is going to blame himself and he is going to say that he and the other guy did
it and I will come out clean.” Id. at 65-66.
The jury convicted the petitioner of second-degree murder and felony firearm. On March
2, 2005, the trial court sentenced him to the prison sentence recited earlier.
The petitioner filed a direct appeal, arguing that there was insufficient evidence to support
his conviction for second-degree murder; the verdict was against the great weight of evidence;
prosecutorial misconduct denied him his right to a fair trial; he was denied effective assistance of
trial counsel; and the trial court improperly denied his motion for a directed verdict of acquittal on
the charge of first-degree murder. On January 23, 2007, the Court of Appeals affirmed the
petitioner’s conviction and sentences. People v. Ramirez-Garcia, No. 261408, 2007 WL 162520
(Mich. Ct. App. Jan. 23, 2007). The court concluded that sufficient evidence supported his
conviction of second-degree murder under an aiding and abetting theory and the jury verdict was
not against the great weight of the evidence. The court also rejected the petitioner’s claim that

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prosecutorial misconduct denied him a fair trial. Finally, the court of appeals rejected the
petitioner’s claim presented in a separate pro se brief that his trial counsel had been constitutionally
ineffective for failing to use an interpreter to consult with the petitioner before trial and before the
evidentiary hearing held on his motion to suppress his pretrial statement. The Michigan Supreme
Court denied leave to appeal on July 30, 2007. People v. Ramirez-Garcia, 479 Mich. 861 (2007)
(table).
The petitioner timely filed a petition for habeas corpus raising three claims:
I.

Petitioner was denied effective assistance of trial counsel (6th Cm. U.S. Const.) and a fair
trial (5th and 14th Am. U.S. Const.) when trial counsel failed to consult with Petitioner with
the aid of an interpreter for trial and prior to filing motions to suppress post-arrest statement
and for failing to file motion for separate trials.

II.

Petitioner was denied his 14th Amendment right to due process of law under the United
States Constitution, where his second-degree murder conviction was not supported by
evidence, to prove beyond a reasonable doubt that Petitioner was guilty of committing or
aiding and abetting the murder.

III.

Petitioner’s 6th and 14th Amendment rights to a fair trial and due process of law under the
United States Constitution were violated where the prosecutor’s flagrant and non-flagrant
statements which consisted of a pattern of improper arguments, rendered the trial
fundamentally unfair.

Pet. at 3.
The respondent filed a response, asserting that each of the petitioner’s claims were
considered and rejected by the Michigan courts, and that these rejections were reasonable under
clearly established United States Supreme Court precedent.
II.
The provisions of Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the
standard of review federal courts must apply when considering an application for a writ of habeas
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corpus raising constitutional claims, including claims of ineffective assistance of counsel. See
Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. § 2254(d) permits a federal
court to issue the writ only if the state court decision on a federal issue “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court,” or it amounted to “an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Franklin v. Francis, 144 F.3d
429, 433 (6th Cir. 1998). Under that review standard, mere error by the state court does not justify
issuance of the writ; rather, the state court’s application of federal law “must have been objectively
unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)
(internal quotes omitted)). Additionally, this Court must presume the correctness of state court
factual determinations. 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be correct.”); see also
West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (stating that “[t]he court gives complete deference
to state court findings of historical fact unless they are clearly erroneous”).
The Supreme Court has explained the proper application of the “contrary to” clause as
follows:
A state-court decision will certainly be contrary to [the Supreme Court’s] clearly
established precedent if the state court applies a rule that contradicts the governing
law set forth in our cases. . . .
A state-court decision will also be contrary to this Court’s clearly established
precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a result
different from [the Court’s] precedent.
Williams, 529 U.S. at 405-06.
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The Supreme Court has held that a federal court should analyze a claim for habeas corpus
relief under the “unreasonable application” clause of § 2254(d)(1) “when a state-court decision
unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. The Court
has explained that an unreasonable application of federal law is different from an incorrect
application of federal law. Under that language, “a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.
The Supreme Court has continued to emphasize the limited nature of this review. In its recent
unanimous decision in Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770 (2011), the Court reiterated
that the AEDPA requires federal habeas courts to review state court decisions with “deference and
latitude,” and “[a] state court’s determination that a claim lacks merit precludes habeas relief so long
as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 785-86
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The distinction between mere error and an objectively unreasonable application of Supreme
Court precedent creates a substantially higher threshold for obtaining relief than de novo review.
The AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and
demands that state-court decisions be “given the benefit of the doubt.” Renico v. Lett, --- U.S. ---,
---, 130 S. Ct. 1855, 1862 (2010) (finding that the state court’s rapid declaration of a mistrial on
grounds of jury deadlock was not unreasonable even where “the jury only deliberated for four hours,
its notes were arguably ambiguous, the trial judge’s initial question to the foreperson was imprecise,
and the judge neither asked for elaboration of the foreperson’s answers nor took any other measures
to confirm the foreperson’s prediction that a unanimous verdict would not be reached”) (internal

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quotation marks and citations omitted)); see also Bray v. Andrews, 640 F.3d 731, 737-38 (6th Cir.
2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy v. Ohio, 551 F.3d 485,
493-94 (6th Cir. 2009); Eady v. Morgan, 515 F.3d 587, 594-95 (6th Cir. 2008); Davis v. Coyle, 475
F.3d 761, 766-67 (6th Cir. 2007); King v. Bobby, 433 F.3d 483, 489 (6th Cir. 2006); Rockwell v.
Yukins, 341 F.3d 507, 511 (6th Cir. 2003) (en banc). Moreover, habeas review is “limited to the
record that was before the state court.” Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1398
(2011).
A.
The petitioner first argues that he was denied effective assistance of trial counsel and a fair
trial where his trial counsel failed to consult with an interpreter before trial and before filing a
motion to suppress his post-arrest statement, and failed to file a motion for separate trials.
To show a violation of the Sixth Amendment right to effective assistance of counsel, a
petitioner must demonstrate “that counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); accord
Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). The petitioner must show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Strickland, 466 U.S. at 687.
The Michigan Court of Appeals rejected the petitioner’s claim of ineffective assistance of
counsel on direct appeal as follows:
Garcia argues he was denied the effective assistance of counsel because his counsel
failed to use an interpreter when he consulted with him before trial. Garcia claims
that his counsel’s failure to consult with him with the aid of an interpreter before
counsel moved for an evidentiary hearing prevented him from participating in his
defense. We disagree.
...
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“Defendants who face incarceration are guaranteed the right to counsel at all critical
stages of the criminal process by the Sixth Amendment.” People v. Willing, 267
Mich. App. 208, 219, 704 N.W.2d 472, 480 (2005). An evidentiary hearing was
conducted to determine the voluntariness of Garcia’s statement. During this time a
Spanish-speaking interpreter was provided. We are unable to determine if counsel
used the aid of an interpreter during his initial meetings with Garcia; however, the
record shows that an interpreter was provided during Garcia’s evidentiary hearing.
During the evidentiary hearing, Garcia testified regarding the voluntariness of his
statement and he maintained that he was coerced and threatened when he made the
statement. Garcia also claimed that he was not read his constitutional rights and that
he signed several papers without reading the contents. Officer Moises Jimenez also
testified regarding Garcia’s statement and, based on the testimony presented, the
court found that the statement was voluntarily given.
Because defense counsel was able to move for an evidentiary hearing based on
Garcia’s claims of threats and coercion, Garcia was able to communicate with his
counsel regarding the involuntariness of his confession before the evidentiary
hearing. It also appears from the record that Garcia was able to convey to the court
that he believed that his interrogation was improperly conducted. Although Garcia
argues that he requested an attorney but the police continued to conduct the
interrogation, Garcia has failed to present any evidence that he was unable to convey
to his attorney this claim at the same time he informed his attorney regarding the
threats and coercion. Garcia has failed to show that counsel was ineffective. Even
if counsel failed to use the aid of an interpreter, Garcia was able to convey to counsel
the need to move for an evidentiary hearing and Garcia was able to present to the
court his allegations of threats and coercion during the hearing. Garcia has failed to
show that counsel was ineffective, and therefore, Garcia has failed to show that he
was denied a fair trial.
People v. Ramirez-Garcia, No. 261408, 2007 WL 162520, at *5-7 (Mich. Ct. App. Jan. 23, 2007).
The Michigan Court of Appeals thus found as a factual matter that the record did not support
the petitioner’s allegation that he was unable to consult with his attorney adequately for the purpose
of preparing for the evidentiary hearing. Instead, the Michigan appellate court found that the record
of the evidentiary hearing showed that regardless of whether the petitioner’s counsel had used an
interpreter to communicate with his client before the hearing, the petitioner was able to convey to
his counsel his factual version of the interrogation. The court’s holding is not contrary to or an

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unreasonable application of the Strickland standard. The petitioner therefore is not entitled to relief
on this claim.
The petitioner also asserts that his trial counsel was ineffective for failing to request separate
trials. The Michigan Court of Appeals rejected this claim, finding that the petitioner was not entitled
to separate trials and therefore his counsel was not ineffective for failing to seek separate trials. See
Ramirez-Garcia, 2007 WL 162520, at *5-7 . It is well-settled that “a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas review.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (holding that habeas relief does not lie for perceived state law
errors); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (confirming that state courts are the final
arbiters of state law). Therefore, the petitioner is not entitled to habeas relief on this claim.
B.
The petitioner next contends that he was denied his right to due process of the law because
his second-degree murder conviction was not supported by sufficient evidence. “[T]he Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,
364 (1970). The critical inquiry on habeas review of the sufficiency of the evidence to support a
criminal conviction is
whether the record evidence could reasonably support a finding of guilt beyond a
reasonable doubt. But this inquiry does not require a court to “ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.”
Instead, the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.

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Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote omitted). A
federal court may not reweigh the evidence or redetermine the credibility of the witnesses. See
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). “It is the province of the factfinder to weigh the
probative value of the evidence and resolve any conflicts in testimony.” Matthews v. Abramajtys,
319 F.3d 780, 788 (6th Cir. 2003) (citing Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992)). A
habeas court must defer to the fact finder for its assessment of the credibility of witnesses. Ibid.
(citing Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000)). The Court need not be convinced that
the petitioner is actually guilty beyond a reasonable doubt, provided there is sufficient evidence in
the record to support the jury’s verdict. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).
The sufficiency of evidence “standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law,” Jackson, 443 U.S. at 324 n.16,
and through the framework of 28 U.S.C. § 2254(d), Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir.
2002).
Applying the Jackson standards, the Michigan Court of Appeals rejected the petitioner’s
insufficiency of evidence arguments as follows:
To prove second-degree murder, the prosecution must show that there was: (1) a
death, (2) caused by an act of the defendant, (3) with malice, and (4) without
justification or excuse. People v. Fletcher, 260 Mich. App. 531, 559, 679 N.W.2d
127, 144 (2004). . . .
To support a finding that a defendant aided and abetted a crime, the prosecutor must
show: (1) the crime charged was committed by the defendant or some other person,
(2) the defendant performed acts or gave encouragement that assisted the
commission of the crime, and (3) the defendant intended the commission of the crime
or had knowledge that the principal intended its commission at the time [the
defendant] gave aid and encouragement. People v. Robinson, 475 Mich. 1, 6, 715
N.W.2d 44, 47-48 (2006).

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The evidence was sufficient for a jury to conclude that the elements for a
second-degree murder conviction were proven under an aiding and abetting theory.
The evidence showed that, while Fabian Ponce-Mejia and Fernando Sanchez were
walking to Sanchez’s van, a black Dodge Stratus with three men inside drove by
shouting at them. Mejia exchanged words with the men. Sanchez and Mejia
separated while walking to the alley. Moments later Sanchez heard gunshots and
saw Mejia lying on the ground. Mejia died from multiple gunshot wounds. The
medical examiner concluded that there were at least two handguns involved in
Mejia’s shooting.
The prosecution presented evidence connecting Garcia to the shooting. In Garcia’s
post-arrest statement, which was read into evidence, Garcia maintained that he and
“Chino” got into a fight with rival gang members at the International Club that night.
Hernandez is also known as “Chino.” Garcia maintained that he, “Chino” and David
Tapia left the club and went driving around in “Chino’s” black Dodge near El
Comal. Garcia said that a guy from the alley walked toward the car when “Chino”
stated, “very much Count, whore and he fired the shots at him.” Garcia said “Chino”
fired about three or four shots. Garcia also claimed he fired a shot from his .25
caliber handgun in the air because he did not want the others to think he was afraid.
Although Garcia denied his involvement in the shooting, the evidence was sufficient
to prove second-degree murder. Mejia was shot several times while walking in an
alley near El Comal and he died from multiple gunshot wounds. Thus, the evidence
was sufficient to show that a death occurred. The evidence was also sufficient to
show that the death was aided by an act of Garcia with malice and without
justification or excuse. See Fletcher, supra. According to Garcia, after feuding with
rival gang members, they went driving around El Comal and during this time words
were exchanged between them and Mejia. Thereafter, shooting occurred and Mejia
was dead.
Garcia admitted that he shot a .25 caliber handgun that night, but maintained that he
only shot the handgun in the air and after Mejia was already on the ground.
Although the police failed to recover a nine millimeter weapon during the search, the
evidence sufficiently showed that Garcia possessed or had access to at least three
different caliber weapons, which would lead to the inference that he could have
access to more weapons or that he was untruthful about the weapon he used that
night. Evidence was presented showing that at least two nine millimeter handguns
were involved in Mejia’s death and that the police recovered two .38 caliber
handguns, 20 rounds of .38-caliber ammunition, four spent rounds, and a bulletproof
vest and photographs evidencing gang affiliation from the home where Garcia was
arrested. Despite Garcia’s claim that he did not know that “Chino” was going to
shoot anyone that night and that the man was already on the ground when he fired
his gun, a reasonable juror could conclude that the evidence presented showed
otherwise.
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Sufficient evidence was presented to show that Garcia acted with malice. Malice
may be inferred from the facts and circumstances of the killing. People v. Kemp, 202
Mich. App 318, 322, 508 N.W.2d 184, 186-87 (1993). This Court has found that
“the trier of fact may make reasonable inferences from direct or circumstantial
evidence in the record.” People v. Perkins, 262 Mich. App. 267, 268-269, 686
N.W.2d 237, 239 (2004). By Garcia’s admission, he, Hernandez, and Tapia drove
around El Comal, around 2:00 a.m., after feuding with rival gang members and they
had loaded weapons. They were also driving in a car without interior or “dome”
lights on. Words were exchanged between the men and Mejia and, thereafter, the
shooting occurred. Garcia’s actions of driving around 2:00 a.m., with a loaded
weapon and after feuding with rival gang members, and then exchanging words with
a suspected rival gang member, was sufficient to infer malice, i.e., intentionally
setting in motion a force likely to cause death or great bodily harm. See Bulmer,
supra.
The evidence failed to show that Garcia’s actions were justified. No evidence was
presented which showed that Mejia initiated the encounter or that Garcia acted in
self-defense. See People v. Riddle, 467 Mich. 116, 119, 649 N.W.2d 30, 34 (2002).
When the shots were fired, Garcia, Hernandez, and Tapia were in the car and Mejia
was walking near the alley. Although Garcia claimed Mejia was walking toward the
car when the shots were fired, it is unlikely that Mejia posed an immediate threat to
the men because there was no evidence of close range firing and no weapons were
recovered from Mejia’s body or the surrounding area. Based on the evidence
presented, it is reasonable for a jury to infer that deadly force was used at a time
when Mejia was not an immediate threat.
Although no evidence was presented showing that Garcia directly killed Mejia,
sufficient evidence was presented which showed that Garcia aided and abetted in the
killing. Garcia was Hernandez’s passenger and they drove around El Comal around
2:00 a.m., with loaded weapons and after feuding with rival gang members. The
evidence further showed that the men exchanged words with Mejia, who they
suspected was a rival gang member. Thereafter, Garcia alleged that Hernandez fired
several shots. “A defendant is criminally liable for the offenses the defendant
specifically intends to aid or abet, or has knowledge of, as well as those crimes that
are the natural and probable consequences of the offense he intends to aid or abet.”
Robinson, supra. The evidence presented was sufficient to support Garcia’s
second-degree murder conviction, i.e., that Mejia was shot and killed, by an act
caused by Garcia, with malice, and without justification or excuse. See Fletcher,
supra.
Ramirez-Garcia, 2007 WL 162520, at *1-3.

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The Michigan Court of Appeals’s holding that the record contained sufficient evidence to
prove beyond a reasonable doubt the petitioner’s guilt of second-degree murder was not contrary
to federal law, an unreasonable application of federal law, or an unreasonable determination of the
facts. The court applied the correct legal standard in addressing the question of sufficiency of the
evidence and applied it with reference to the elements of the crime. Evidence was presented from
which a reasonable jury could find all the elements of second-degree murder on an aiding and
abetting theory. Therefore, the petitioner is not entitled to habeas relief on this claim.
C.
In his third claim, the petitioner asserts that the prosecutor engaged in misconduct that
rendered his trial unfair. He argues that the prosecutor committed misconduct when she mischaracterized the evidence in her opening statement to imply that the petitioner admitted to shooting
at the victim; when she improperly introduced evidence of the guns, bulletproof vest, and
photographs seized at the house where the petitioner was residing at the time of his arrest; and stated
during closing argument that the victim did not have a weapon. The Michigan Court of Appeals
rejected each of these claims on the merits.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487, 512
(6th Cir. 2003)). Prosecutorial misconduct will form the basis for habeas relief only if the conduct
was so egregious that it rendered the entire trial fundamentally unfair based on the totality of the
circumstances. Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999) (stating that “[p]rosecutorial
misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to
render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation”),

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abrogated on other grounds by Mackay v. Dutton, 217 F.3d 399, 406 (6th Cir. 2000). The first
question to consider is whether the prosecutor’s conduct or remarks were improper. Slagle v.
Bagley, 457 F.3d 501, 516 (6th Cir. 2006). If they were, the court must decide whether the improper
acts were so flagrant as to warrant relief. Ibid. Flagrancy depends on four factors: 1) whether the
actions “tended to mislead the jury or prejudice the defendant”; 2) whether the actions were isolated
or represent a pervasive course of conduct; 3) whether the acts represent a deliberate attempt to
affect the outcome of the case; and 4) the overall strength of the case. Millender, 376 F.3d at 528.
The determination whether the trial was fundamentally unfair is “made by evaluating the
totality of the circumstances surrounding each individual case.” Angel v. Overberg, 682 F.2d 605,
608 (6th Cir. 1982) (citing Hayton v. Egeler, 555 F.2d 599, 604 (6th Cir. 1977)). The Court focuses
on “‘the fairness of the trial, not the culpability of the prosecutor.’” Pritchett v. Pitcher, 117 F.3d
959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dep’t of Corr., 4 F.3d 1348, 1355 (6th Cir.
1993)). “The Supreme Court has clearly indicated that the state courts have substantial breathing
room when considering prosecutorial misconduct claims because ‘constitutional line drawing [in
prosecutorial misconduct cases] is necessarily imprecise.’” Slagle, 457 F.3d at 516 (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)).
The Michigan Court of Appeals rejected the petitioner’s claim of prosecutorial misconduct
as follows:
Garcia argues that the prosecutor mischaracterized the evidence by implying during
opening statement that he admitted to shooting at the victim. During Garcia’s
post-arrest statement, he denied shooting at Mejia, but he admitted that he fired his
gun “towards the sky” after Mejia was already on the ground. Although the
prosecutor’s statement was only partially substantiated, Garcia has failed to show
plain error requiring reversal. This Court has held that “when a prosecutor states that
evidence will be submitted to the jury, and the evidence is not presented, reversal is
not warranted if the prosecutor did so acting in good faith.” People v. Wolverton,
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227 Mich. App. 72, 75, 574 N.W.2d 703, 704-05 (1997). The record does not show
that the prosecutor acted in bad faith when she made the statement. More
importantly, Garcia’s post-arrest statement discussing his role in the shooting was
admitted into evidence, and the court instructed the jury that the lawyers’ statements
and arguments were not evidence and that it should “only accept things that the
lawyers say that are supported by evidence or by [its] own common sense and
general knowledge.” Even if the challenged remarks had any prejudicial potential,
the trial court’s instructions were sufficient to eliminate any prejudice that may have
stemmed from the prosecutor’s statement. See People v. Daniel, 207 Mich. App. 47,
57, 523 N.W.2d 830, 837 (1994).
Garcia next argues that the prosecutor improperly introduced into evidence the guns,
ammunition, casings, bulletproof vest, and photographs seized at the Longworth
home. We disagree.
Garcia was arrested near the entrance of the Longworth home and the police
recovered from the home two .38 caliber handguns, 20 rounds of .38-caliber
ammunition, four spent rounds, and a bulletproof vest and photographs evidencing
gang affiliation. Although Mejia died from bullets shot from nine millimeter
handguns and not a .38 caliber weapon, the prosecution properly introduced the
evidence. Garcia admitted to shooting a gun the night Mejia was killed, but there
were inconsistencies regarding the weapon that he used. During Garcia’s post-arrest
statement, he maintained that he used a .25 caliber when he fired in the air.
However, during Garcia’s taped telephone conversation, he maintained that he used
a .22 caliber handgun. When the Longworth home was searched two .38 caliber
weapons were seized. Because Mejia was killed with bullets from nine millimeter
handguns, and Garcia claimed he used a .25 or .22 caliber weapon, the evidence
relating to the .38 caliber handguns was introduced to show that Garcia was not
being truthful about the weapon that he used that night.
The evidence seized at the Longworth home was also admitted to further the
prosecution’s theory that the shooting was gang related and that Garcia assisted in
the shooting based on his gang affiliation. The police recovered a bulletproof vest
with graffiti art and photographs evidencing gang affiliation from the Longworth
home. Even if the evidence was of “marginal relevance, prosecutorial misconduct
cannot be predicated on good-faith efforts to admit evidence.” People v. Noble, 238
Mich. App. 647, 660, 608 N.W.2d 123, 131 (1999). The prosecution’s theory was
that the shooting was gang related, and therefore, the evidence was intended to
further the prosecution’s theory. Garcia has failed to show that the prosecutor
introduced the evidence in bad faith thus his claim of prosecutorial misconduct is
without merit.
Garcia further argues that the prosecutor mischaracterized evidence during closing
argument. We disagree. During closing argument, the defense objected to the
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prosecutor’s argument that Mejia did not have a weapon. The statement was not
improper because the evidence supported the statement. No evidence was presented
showing that Mejia had a weapon that night and no weapons were recovered at the
scene of the shooting. The prosecutor was “free to argue the evidence and any
reasonable inferences that may arise from the evidence.” See Ackerman, supra.
Ramirez-Garcia, 2007 WL 162520, at *4-5.
The court’s holding was not an unreasonable determination of the facts, or contrary to or an
unreasonable application of Supreme Court precedent. The prosecutor’s opening statement
indicating that the petitioner acknowledged in his statement to the police that he shot “in the
direction of” the victim, while arguably improper, was isolated rather than flagrant. There is no
evidence that the prosecutor’s statement was a deliberate misstatement of the evidence, as it
occurred only once in the opening statement and was not repeated in closing. It was also seized
upon and refuted by the defense counsel in his opening, which lessened any possible prejudice
resulting from the prosecutor’s opening statement. The prosecutor’s closing argument that the
victim did not have a gun was not improper because it was supported by evidence, and prosecutors
may “argue the record, highlight any inconsistencies or inadequacies or the defense, and forcefully
assert reasonable inferences from the evidence.” Cristini v. McKee, 526 F.3d 888, 901 (6th Cir.
2008). As to the evidence seized in the search, the petitioner admitted that he resided at the location
where the evidence was seized, and the evidence was relevant to the prosecution’s theory that gang
affiliation motivated the crime. Therefore, the prosecutor’s conduct in seeking its admission was
not improper. The petitioner is not entitled to habeas relief on this claim.
III.
The state courts’ decisions in this case were not contrary to federal law, an unreasonable
application of federal law, or an unreasonable determination of the facts in light of Supreme Court

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precedent. The petitioner has not established that he is presently in custody in violation of the
Constitution or laws of the United States.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt #1] is
DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 7, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 7, 2011
s/Deborah R. Tofil
DEBORAH R. TOFIL

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